BARBARA MCLAREN, ETC. VS. THE UPS STORE, INC. (L-0919-20, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1612-20
BARBARA MCLAREN,
on behalf of herself and
others similarly situated,
Plaintiff-Respondent,
v.
THE UPS STORE, INC.,
TURQUOISE TERRAPIN, LLC,
formerly d/b/a UPS STORE #4122,
RK & SP SERVICES, LLC,
formerly d/b/a UPS STORE #4122,
HAMILTON PACK N SHIP, LLC,
in their own right and as
representatives of a class of
similarly situation UPS STORE
franchisees,
Defendants-Appellants.
______________________________
Argued May 10, 2021 – Decided July 22, 2021
Before Judges Messano, Hoffman, and Suter.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Mercer County,
Docket No. L-0919-20.
Joseph R. Palmore (Morrison & Foerster, LLP) of the
District of Columbia bar, admitted pro hac vice, argued
the cause for appellants (Morrison & Foerster, LLP,
attorneys; David J. Fioccola, Adam J. Hunt, and Mark
R. McDonald (Morrison & Foerster, LLP) of the
California bar, admitted pro hac vice, on the briefs).
Jared M. Placitella argued the cause for respondent
(Cohen, Placitella & Roth, PC, attorneys; Jared M.
Placitella, Caroline Ramsey Taylor (Whitfield Bryson,
LLP) of the Tennessee bar, admitted pro hac vice, and
Daniel K. Bryson and Jeremy R. Williams (Whitfield
Bryson, LLP) of the North Carolina bar, admitted pro
hac vice, of counsel and on the briefs).
PER CURIAM
In this putative class action, we granted defendant, RK & SP Services
LLC, leave to appeal from the Law Division's order denying defendant's motion
to dismiss the complaint brought by plaintiff Barbara McLaren individually and
as representative of a class. Our February 18, 2021 order limited our review to
plaintiff's individual claims premised upon defendant's "alleged violation of
N.J.S.A. 22A:4-14."1 That statute provides:
For a service specified in this section, foreign
commissioners of deeds, notaries public, judges and
1
Plaintiff alleged that defendant, a franchisee of defendant The UPS Store, Inc.
(TUPPS), was the owner of "UPS Store #4122," and the other individually
named defendants were defendant's predecessor and successor in interest. Given
the limitation of our order, we use the singular "defendant" throughout this
opinion.
A-1612-20
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other officers authorized by law to perform such
service, shall receive a fee as follows:
For administering an oath or taking an affidavit, $2.50.
For taking proof of a deed, $2.50.
For taking all acknowledgments, $2.50.
For administering oaths, taking affidavits, taking
proofs of a deed, and taking acknowledgments of the
grantors in the transfer of real estate, regardless of the
number of such services performed in a single
transaction to transfer real estate, $15.00.
For administering oaths, taking affidavits and taking
acknowledgments of the mortgagors in the financing of
real estate, regardless of the number of such services
performed in a single transaction to finance real estate,
$25.00.
[N.J.S.A. 22A:4-14 (the Statute) (emphasis added).]
Because this appeal comes to us from the denial of defendant's motion to
dismiss the complaint for failure to state a claim, "[w]e . . . treat [plaintiff's]
version of the facts as uncontradicted and accord it all legitimate inferences. We
pass no judgment on the truth of the facts alleged; we accept them as fact only
for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v.
Gandi, 184 N.J. 161, 166 (2005) (citing R. 4:6-2(e)). The critical concern is
whether, upon review of the complaint, exhibits attached thereto and matters of
public record, there exists "the fundament of a cause of action"; "the ability of
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the plaintiff to prove its allegations is not at issue." Id. at 183 (citing Printing
Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).
We review a decision denying a motion to dismiss for failure to state a
claim de novo applying the same standard as the Law Division judge. MasTec
Renewables Constr. Co. v. SunLight Gen. Mercer Solar, LLC, 462 N.J. Super.
297, 309 (App. Div. 2020) (citing Castello v. Wohler, 446 N.J. Super. 1, 14
(App. Div. 2016)). Moreover, when analyzing pure questions of law raised in a
dismissal motion, such as the application of a statute of limitations, we
undertake a de novo review. Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div.
2017) (citing Royster v. N.J. State Police, 227 N.J. 482, 493 (2017); Town of
Kearny v. Brandt, 214 N.J. 76, 91 (2013)).
I.
On August 26, 2019, plaintiff visited UPS Store #4122 in Hamilton
Square, owned at the time by defendant. She sought a notary to take her affidavit
on an L-8 Form for the Division of Taxation and to acknowledge her signature
on a bank form. Defendant charged plaintiff five dollars per document, for a
total of ten dollars. Plaintiff filed this complaint, alleging the following causes
of action against defendant: violation of the Statute; violation of the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -226; unjust enrichment; and civil
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conspiracy. She sought bilateral certification of a class of all customers in New
Jersey charged fees in excess of those permitted by the Statute by a defendant
class of TUPPS franchisees who charged excessive fees to notarize documents.
Defendant moved to dismiss the complaint before filing an answer,
contending it failed to state a cause of action; defendant also sought to strike
plaintiff's class allegations. The judge heard legal argument on the motion.
In a written decision, after reciting the relevant case law and the parties'
contentions and arguments, the judge concluded "[t]he actual interpretation of
the [S]tatute and how parties have perceived [it] cannot be established without
further evidence. There are clearly triable issues of fact here, and . . . the matter
must be allowed to proceed." The judge denied defendant's motion. 2
II.
Defendant repeats the same arguments made in the Law Division. It
contends the plain meaning of the Statute is clear — by using the phrase "shall
receive," the Legislature signified a "minimum fee" for a notary's service in
administering an oath or taking an affidavit, not "a maximum limit" as to what
2
The judge granted the motion as to count five of plaintiff's complaint which
separately sought equitable and injunctive relief. The judge concluded this was
not a claim but "rather a remedy, a prayer for relief." He "converted" the fifth
count to "a request for relief" and dismissed count five. Plaintiff did not seek
leave to appeal that portion of the order.
A-1612-20
5
a business may charge for such services. Defendant contends the Statute's plain
meaning is confirmed by "statutory context and canons of construction," and
"subsequent legislative history and secondary sources" do not "alter [the
Statute's] plain meaning." Lastly, defendant contends the Statute does not
"infer" any private right of action for alleged violations.
Plaintiff agrees the Statute is not ambiguous — simply put, it "sets the
price that can be charged for notary services." Plaintiff contends this
construction is supported by canons of statutory interpretation, legislative
history, and secondary sources. Plaintiff also argues the Statute implicitly
creates a cause of action for its violation, and any violation is also actionable
under the CFA.
"The objective of all statutory interpretation is to discern and effectuate
the intent of the Legislature[,]" Murray v. Plainfield Rescue Squad, 210 N.J.
581, 592 (2012), and "the best indicator of that intent is the statutory language"
which should be given its "ordinary meaning and significance." DiProspero v.
Penn, 183 N.J. 477, 492 (2005) (first citing Frugis v. Bracigliano, 177 N.J. 250,
280 (2003); and then citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). "We
construe the words of a statute 'in context with related provisions so as to give
sense to the legislation as a whole.'" Spade v. Select Comfort Corp., 232 N.J.
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504, 515 (2018) (quoting N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229
N.J. 541, 570 (2017)).
Courts may not "rewrite a plainly written statute or . . . presume that the
Legislature meant something other than what it conveyed in its clearly expressed
language." Murray, 210 N.J. at 592 (citing DiProspero, 183 N.J. at 492). "If
the plain language leads to a clear and unambiguous result, then our interpretive
process is over." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)
(quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189,
195 (2007)). "We rely on extrinsic evidence of legislative intent 'only when the
statute is ambiguous, the plain language leads to a result inconsistent with any
legitimate public policy objective, or it is at odds with a general statutory
scheme.'" Spade, 232 N.J. at 515 (quoting Shelton v. Restaurant.com, Inc., 214
N.J. 419, 429 (2013)).
Defendant contends the Statute "creates an entitlement for notaries to be
compensated, not a restriction on what they or their employers may charge."
Plaintiff counters that the plain language of the Statute — a notary "shall receive
a fee" — evidences the Legislature's intent to limit the fee for performance of
the outlined services. With both sides arguing diametrically opposed views of
the Statute's plain meaning, we might assume some ambiguity regarding the
A-1612-20
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Legislature's choice of words. See, e.g., MasTec Renewables, 462 N.J. Super.
at 320 (noting ambiguity in a statute if its wording "leads to more than one
plausible interpretation" (quoting State v. Twiggs, 233 N.J. 513, 532 (2018))).
However, we are inclined to agree with plaintiff.
Shall means "[h]as a duty to; more broadly, is required to." Black's Law
Dictionary 1653 (11th ed. 2019). "When according statutes their plain meaning,
'the word "may" ordinarily is permissive and the word "shall" generally is
mandatory.'" In re State Bd. of Educ.'s Denial of Petition, 422 N.J. Super. 521,
532 (App. Div. 2011) (quoting Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318,
325 (2000)). "In
. . . rare situations, the word 'shall' conveys only a suggestion that something be
done, rather than a mandate to do it." Ibid. But, only "[i]f no public benefit
ensues and no private right is insured by according the word 'shall' an imperative
meaning, . . . is [it] to be construed as directory rather than mandatory." State
v. Jorn, 340 N.J. Super. 192, 196 (App. Div. 2001) (quoting Franklin Ests. v.
Twp. of Edison, 142 N.J. Super. 179, 184 (App. Div. 1976), aff'd, 73 N.J. 462(1977)).
Pursuant to the Notaries Public Act (the NPA), N.J.S.A. 52:7-10 to -21,
notaries are appointed by the State Treasurer for a five-year term "but may be
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removed from office at the pleasure of the State Treasurer." N.J.S.A. 52:7-11(a).
A notary must "subscribe an oath" and "indorse a certificate of commission and
qualification." N.J.S.A. 52:7-14(a) and (b). Notaries may be denied
appointment or re-appointment if convicted of certain crimes. N.J.S.A. 52:7-
20; N.J.S.A. 52:7-21.
The Legislature generally has provided notaries public with the authority
to administer oaths and take affidavits since 1864. State v. Eisenstein, 16 N.J.
Super. 8, 12 (App. Div. 1951) (citing L. 1864, p. 15; Rev. 1877, p. 740).
N.J.S.A. 41:2-1 lists those "officers" empowered to administer oaths and take
affidavits; notaries public are included, along with justices of the Supreme
Court, judges, mayors, surrogates, sheriffs and clerks of court. Notaries public
and attorneys are in a short list of otherwise public officials "authorized to take
acknowledgments or proofs." N.J.S.A. 46:14-6.1(a).3
Our point is simple. As Chief Justice Weintraub said, "The notary holds
a public office . . . [and] exercises a power he [or she] receives from government
rather than from someone who happens to be his private employer." Com. Union
Ins. Co. v. Burt Thomas-Aitken Constr. Co. (Com. Union I), 49 N.J. 389, 392–
3
See Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 306 (App. Div. 2003)
(explaining "acknowledgments" as "statements completed by the notaries public
. . . necessary to record an instrument, N.J.S.A. 46:14-2.1," and not a "jurat").
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93 (1967) (citations omitted). See also Immerman v. Ostertag, 83 N.J. Super.
364, 369 (Law Div. 1964) ("A notary is a public officer and, as such, he owes a
duty to the public to discharge his functions with diligence.").
Plaintiff sought the services of a public officer to whom the government
has granted significant powers limited to few others in the state, and over whom
the government exercises significant authority. A member of the public would
hardly expect that other public officials empowered by the Statute to perform
certain functions could charge whatever they wished for administering oaths,
taking acknowledgements, et cetera. Yet, during oral argument before us,
defendant acknowledged that its interpretation of the Statute's plain language
would permit a notary to charge $100 or more for these services, an absurd result
that cannot be countenanced based on a literal reading of the statutory language.
Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). In our
view, the Statute provides a decidedly public benefit by limiting the amount of
money the public may be charged by a public officer, and that benefit is only
secured by "according the word 'shall'" — a notary public shall receive a fee —
its "imperative meaning." Jorn, 340 N.J. Super. at 196 (quoting Franklin Ests.,
142 N.J. Super. at 184).
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Defendant posits other arguments that do not rely on the Statute's plain
language. While noting the paucity of caselaw, defendant cites Gittleman v.
City of Newark, 132 N.J.L. 328 (E. & A. 1945), Castellano v. City of Newark,
21 N.J. Misc. 63 (Cir. Ct. 1943), and Samson v. City of Newark, 125 N.J.L. 221(Sup. Ct. 1940), as supporting its position that the Statute merely states
minimum compensation to which notaries are entitled, not a limitation on fees
they may charge. None of the cases cited by defendant are apposite.
In Gittleman, the plaintiff, an attorney working for the City of Newark,
sued seeking payment for taking acknowledgements on tax sale certificates three
years earlier. 132 N.J.L. at 329. The court simply held that the plaintiff
"waive[d] . . . any claim for the taking of acknowledgments." Id. at 330(citations omitted). Similarly, in Castellano, the plaintiff attorney employed by
the City of Newark sued "for alleged statutory compensation claimed to be due
. . . for taking acknowledgments to tax sales certificates." 21 N.J. Misc. at 63.
The court recognized the Statute "provide[d] . . . compensation . . . for taking
acknowledgements," but rejected the plaintiff's suit, noting his position and
annual salary "contemplated . . . the performance . . . of such services," and
further, that at the time the plaintiff actually performed the services, the Statute
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made "no provision for compensation . . . for taking acknowledgments by an
attorney-at-law." Id. at 65–66.
The court in Samson reached a different result, concluding that the
plaintiff-attorneys, who were not employed by the City of Newark, took
acknowledgments on tax sale certificates but never received "[t]he fee fixed by
law." 125 N.J.L. at 222. Instead, those fees became part of the tax lien and
when sold those fees were paid into the city treasury. Ibid. The court concluded
the plaintiffs were entitled to judgment because the city was "enriched at the
expense of officers performing a statutory service for which a fee has been
earned and paid to the city." Id. at 223.
In our view, these cases stand for nothing more than the unremarkable
proposition that the Statute provides compensation for a notary and other public
officials who perform certain services. They do not advance defendant's claim
that the Statute does not cap the fee charged to the public.
In fact, the dicta in these cases, and one more which neither party cites,
support plaintiff's position, not defendant's. In Commercial Union Insurance
Company v. Burt Thomas-Aitken Construction Company (Com. Union II), the
Court considered the plaintiff-surety's claim that the "notary should be held to
guarantee the truth of his acknowledgement." 54 N.J. 76, 81 (1969).
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Recognizing the notary was "not an insurer, and is not liable except for
negligence[,]" the Court affirmed the jury's no cause verdict. Ibid. Importantly
for our purposes, the Court said: "The authorized fee for an acknowledgment
. . . is nominal and would hardly support an investigation appropriate for the
assumption of absolute liability." Ibid. (emphasis added) (citing N.J.S.A.
22A:4-14).4 See also Castellano, 21 N.J. Misc. at 65 (the Statute "merely fixes
the amount" for certain services); Samson, 125 N.J.L. at 223 (noting the
plaintiffs were "entitled by law to fixed fees") (emphases added). In short, these
cases support plaintiff's principal argument that the fee charged for services
listed in the Statute has been fixed by the Legislature.
Defendant contends the Statute should not be read as setting a mandatory
maximum fee for the services listed because the phrase — "shall receive a fee
as follows" — is markedly different from other statutory provisions that evince
the Legislature's clear intention to fix a permitted fee. We accept as a general
proposition that the Legislature knows how to express its intent, and the
presence of explicit language of other statutory provisions may imply a
legislative intent different from the expressed language in the Statute at issue.
See, e.g., Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244
4
At the time, the statutory fee for an acknowledgment was one dollar. Ibid.
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N.J. 75, 111–12 (2020) (concluding that "power of inquiry" provided by one
statute is not the power to subpoena explicitly provided in other statutes).
The statutes defendant cites are not part of Chapter 4 of Title 22A which
generally deals only with fees charged by various public officers for their
services. We confine our review to those provisions, many of which were
enacted as part of a comprehensive legislative scheme.5 See DiProspero, 183
N.J. at 492 (reading statutory words "in context with related provisions so as to
give sense to the legislation as a whole"). The language in many sections varies
little from that used in the Statute. See N.J.S.A. 22A:4-6 ("county clerk shall
receive" certain amount for "attending . . . daily sessions" of Superior Court);
N.J.S.A. 22A:4-8 (enumerating fees that sheriffs "shall receive" for various
services); N.J.S.A. 22A:4-10 (listing fees that "[s]heriffs, undersheriffs, deputy
sheriffs, constables, court attendants and other officers authorized by law to
perform" certain services "shall receive"); N.J.S.A. 22A:4-11 (computing
mileage payments that "[s]heriffs, constables and other authorized officers shall
receive"); N.J.S.A. 22A:4-12 (setting fees that clerk of the Superior Court,
county clerks and registrars "shall receive" for various services); N.J.S.A.
5
Although its historical antecedents extend back to the nineteenth century, the
Statute was part of a comprehensive revision enacted by the Legislature in 1953.
See L. 1953, c. 22.
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22A:4-16 (services performed by judicial officers "shall be paid to, demanded
and received by the clerk of the court"). According to N.J.S.A. 22A:4-17(a),
"[a]ll fees . . . and other perquisites of whatever kind" that certain county
officials "are entitled to charge and receive for any official acts or services they
may render shall be for the sole use of the county." (emphasis added).
As already noted, the Statute includes notaries amongst other public
officers and is part of a larger scheme devised by the Legislature. It is
incomprehensible that the Legislature intended public officers, including
notaries public, could simply charge "and receive a fee" for certain services
exceeding those fees set forth within the statutory framework.
Defendant's interpretation of the Statute's language is also not supported
by its more recent legislative history. See Varsolona v. Breen Cap. Servs. Corp.,
180 N.J. 605, 623 (2004) ("[S]ubsequent legislation may be used by a court as
an extrinsic aid when seeking to discern earlier legislative intent."). The
Legislature enacted amendments to the Statute in 2002 that increased the fees
for certain services, including taking an affidavit or acknowledgment. L. 2002,
c. 34 § 48, eff. July 1, 2002. In addition, the 2002 amendment added the
following new provisions to the Statute:
For administering oaths, taking affidavits, taking
proofs of a deed, and taking acknowledgments of the
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grantors in the transfer of real estate, regardless of the
number of such services performed in a single
transaction to transfer real estate, $15.00.
For administering oaths, taking affidavits and
taking acknowledgments of the mortgagors in the
financing of real estate, regardless of the number of
such services performed in a single transaction to
finance real estate, $25.00.
[N.J.S.A. 22A:4-14 (emphasis added).]
Defendant contends that these additional provisions evince a legislative
intent to cap notary fees only in certain circumstances — real estate and
mortgage transactions — not present here. We reach a different conclusion. The
Legislature understood that federal law required closing statements provide
accurate figures for certain ministerial duties, like notary services, that were
necessary to consummate the sale or mortgage financing:
Under federal law (Real Estate Settlement
Procedures Act), notary charges must be shown on the
closing statement of a real estate transaction. However,
the precise amount of the charges is typically not
known until shortly before the settlement. To amend
the closing statement so close to the settlement can
cause delay in the process of completing the
transaction. This bill takes the guesswork out of
calculating the notary public charges so that closing
statements can be prepared in advance of the settlement
and the transaction can be completed without additional
delay.
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[Sponsor's Statement to A. 1848 (Feb. 21, 2002).]6
These new provisions limited the fees notaries public "shall receive" when
providing certain services in real estate and mortgage transactions, regardless of
the number documents involved. The new provisions did not change the fees
notaries "shall receive" in other circumstances, and they do not indicate a
different legislative intent as to the maximum fees notaries could charge for their
services.
We conclude that the fees for notarial services set by the Statute are the
maximum fees that may be charged. Such interpretation is consistent with the
plain language of the Statute, the context of the entire legislative scheme of
which it is part, the limited caselaw applying the Statute, and its recent
legislative history.
III.
Defendant contends that the Statute confers no private right of action upon
plaintiff to bring a suit alleging she was charged notary fees in excess of the
statutory amounts. Defendant also asserts, in passing, that since it is a business
6
It appears that the provisions of A.B. 1848 were incorporated in the final text
of A. 2506 and enacted as L. 2002, c. 34.
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entity, not a corporeal person serving as a notary, even if plaintiff was correct
in her construction of the Statute, she had no cause of action against defendant.
As to this latter point, the motion judge aptly noted that issues of
defendant's vicarious responsibility for the actions of the notary who provided
the services to plaintiff, as well as TUPPS' potential liability for the conduct of
its franchisees, were incapable of resolution without further development of the
record.7 We decide only whether the facts alleged in plaintiff's complaint
"suggested" a cause of action against defendant. Printing Mart-Morristown, 116
N.J. at 746. The complaint certainly meets this test.
As to the right to bring a cause of action specifically under the Statute,
"New Jersey courts have been reluctant to infer a statutory private right of action
where the Legislature has not expressly provided for such action." R.J. Gaydos
Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271 (2001). The
Court has adopted a three-part test for determining whether a statute implies a
private right of action:
7
We also hasten to add that we do not decide whether a franchisee may charge
a notary fee consistent with the Statute and a separate "convenience" fee. The
appendix to defendant's motion for leave to appeal included a similar complaint
filed by another plaintiff in another vicinage, to which was attached the store
receipt demonstrating an alleged violation of the Statute. That receipt, however,
had the charge broken down into two components: a notary fee of $2.50; and a
convenience fee of $12.50.
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To determine if a statute confers an implied
private right of action, courts consider whether: (1)
plaintiff is a member of the class for whose special
benefit the statute was enacted; (2) there is any
evidence that the Legislature intended to create a
private right of action under the statute; and (3) it is
consistent with the underlying purposes of the
legislative scheme to infer the existence of such a
remedy.
[Id. at 272.]
"Although courts give varying weight to each one of those factors, 'the primary
goal has almost invariably been a search for the underlying legislative intent. '"
Id. at 272–73 (quoting Jalowiecki v. Leuc, 182 N.J. Super. 22, 30 (App. Div.
1981)).
Here, the first Gaydos prong weighs in favor of an implied cause of action
because the fees set by the Statute were intended to benefit the public by limiting
the amount of money that public officers could charge for performing certain
functions. It is anomalous, indeed, if our courts were to recognize the potential
right of a notary to sue for his or her statutory fees, as in Gittleman, Castellano,
and Samson without recognizing the public's reciprocal right to only pay those
fees permitted by the Statute.
As to the second Gaydos prong, there is no evidence that the Legislature
intended to create a private right of action under the Statute as it expressly did
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in other provisions of Chapter 4 of Title 22A. N.J.S.A. 22A:4-8, for example,
provides that an "aggrieved" party may file suit against a sheriff whose charges
exceed the statutory amount. As part of the 1953 legislation which included the
Statute, the Legislature enacted N.J.S.A. 22A:4-13, a provision that expressly
permitted a party to sue a notary who overcharged for services involving certain
commercial instruments. L. 1953, c. 22, § 11; repealed by L. 2002, c. 34, § 49.8
N.J.S.A. 22A:4-15 expressly permits the State Treasurer to file a "civil action"
to recover fees charged by the Clerks of the Supreme Court and Superior Court
and bring suit in lieu of prerogative writs against those public officers. See also
N.J.S.A. 22A:4-17 (permitting county commissioners to file similar suits against
county surrogates, clerks, registrars, and sheriffs for failing to remit fees
received for their official acts).
8
The Sponsor's Statement for the repealer explained its purpose, which had
nothing to do with the private right of action set forth in the statute:
[T]he bill repeals N.J.S.A. 22A:4-13, which establishes
the fees a notary public may collect for the service of
making a demand for payment or registering a protest
against a demand for payment. The act of making a
demand for payment under oath was made obsolete
with the passage of the Uniform Commercial Code . . .
in 1961.
[Sponsor's Statement to A. 1848.]
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It is significant that the Legislature expressly provided for private and
public rights of action for violations involving statutory fees public officers may
charge for their services, or for other failures in carrying out their ministerial
duties, yet did not provide for similar rights under the Statute. "In determining
whether the Legislature intended to authorize an implied private cause of action,
'a court should be mindful of the "elemental canon of statutory construction that
where a statute expressly provides a particular remedy or remedies, a court must
be chary of reading others into it."'" Castro v. NYT Television, 370 N.J. Super.
282, 293 (App. Div. 2004) (quoting Glynn v. Park Tower Apartments, Inc., 213
N.J. Super. 357, 362 (App. Div. 1986)).
As to the third Gaydos prong, "[o]ur Supreme Court has indicated that a
court should be especially hesitant in implying a right to a private cause of action
against an entity that is subject to pervasive regulation by a State agency." Id.
at 293. As noted, pursuant to the NPA, notaries public are commissioned public
officers who are subject to statutory obligations and may be removed at the at
the pleasure of the State Treasurer. N.J.S.A. 52:7-11. The New Jersey Division
of Revenue's Business Support Services Bureau administers the notary public
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program and has published a manual for guidance a required by the NPA. 9 See
N.J.S.A. 52:7-17 (requiring the State Treasurer to include certain provisions in
the manual and update the manual as appropriate).
Presumably, the conduct of any notary public who charges fees exceeding
those permitted by the Statute could be brought to the attention of the State
Treasurer for appropriate action. See Warren Cnty. Bar Ass'n v. Bd. of Chosen
Freeholders, 386 N.J. Super. 194, 203 (App. Div. 2006) (declining to find
private right of action under N.J.S.A. 2B:6-1 because "recognition of a private
right of action is not required to ensure proper enforcement of the statute" (citing
R. J. Gaydos, 168 N.J. at 274–75)).
We conclude that the Statute confers no private cause of action on
plaintiff. We therefore reverse the order under review and order the trial court
to dismiss the first count of her complaint.
Our order limited the grant of interlocutory appeal to "causes of action
asserted by plaintiff in her individual capacity against defendant . . . premised
upon that defendant's violations of [the Statute]." Defendant correctly notes in
its brief the limited scope of our order, and we regret any imprecision in the
9
Parenthetically, the manual states the fees in the Statute "are fees that Notaries
may charge."
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order that may have implied our intention to address whether the complaint was
cognizable under the CFA. Additionally, plaintiff properly notes that her
complaint alleged other common law causes of action which also were not
within the scope of our order.
More importantly, since entry of our order, it has become clear that the
paucity of the existing record impedes any consideration of whether charging a
fee that violates the Statute is alone sufficient to sustain the CFA count in the
complaint. For example, we already noted the complex statutory scheme
governing notaries public under the NPA and the power of the State Treasurer
to remove a notary from his office at the Treasurer's pleasure.10
Plaintiff's assumption that a violation of the Statute is per se a violation
of the CFA fails to recognize the difference between services provided by a
public officer — an individual notary public — and a purveyor of consumer
goods and services. We are unfamiliar with any case that holds the CFA applies
to a public official who obtains his or her powers directly from the State and is
subject to significant State control and discipline, and plaintiff has failed to
bring one to our attention.
10
Several pieces of legislation are currently pending in the Legislature that
would significantly amend the current NPA.
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At the same time, defendant and the other franchisees are providing a
service to the public. On the record that exists, we reach no conclusion as to
whether the complaint states a cause of action under the CFA or the common
law, nor was it our intention to address those issues by our grant of interlocutory
review.
We reverse the order under review only with respect to count one of
plaintiff's complaint. Although we conclude the Statute sets the maximum fee
a notary public may charge for services listed in the Statute, the Statute provides
no express or implied cause of action to recover for an excessive fee. The matter
is remanded to the Law Division for entry of an order dismissing count one of
plaintiff's complaint and for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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